As a result of the Covid-19 health crisis, working from home or teleworking is on the increase, and due to Brexit the United Kingdom is no longer a member of the European Union.
Of course, some of the people who are working from home in the UK are looking to move to Spain and gain residence or residencia as it’s called here in order to work from their Spanish home.
This situation has created some confusion since this type of work does not fit well with the non-lucrative visa because on some occasions the Spanish authorities understand that they are actually working in Spain,
not with the work and residence visa since the company they work for remotely does not have to have their headquarters in Spain.
After 30 years as I lawyer as I am of the opinion that at the present time there is a gap in the law that is creating a lot of uncertainty regarding these teleworkers who want to live in Spain but who work for companies located outside of Spain.
Until now, these types of workers had availed themselves of the Non-Lucrative Residence visa, with the characteristic that they could only telework for companies outside of Spain, since they only had a residence visa and not, a residence visa and a work visa.
What does seem clear is that these teleworkers, by staying more than 183 days a year in Spanish territory, are being considered as tax residents and therefore will have to pay their taxes in Spain on all the income they receive inside or outside the country, regardless of the double taxation treaties that Spain may have signed with the country where the company for which you are teleworking is based, for example, the United Kingdom.
However, there is enormous confusion regarding the type of visa they must request to be able to telecommute from Spain.
On the one hand, the non-profit residence visa would seem the most logical if the teleworker, although he carries out his work virtually from Spain, technically works and receives his income from him in another country. But the Spanish administration has not agreed on this matter and they are denying some applications for this type of visa, although from our point of view as lawyers, and based on the applicable law, this is wrong.
On the other hand, the residence and work visa does not fit into the concept of teleworking either, since that would mean that the company that is located outside our borders and has no further ties to Spain, except for the teleworker who prefers to live here than, in their country of origin, would have to go through the filter of proving that the activity carried out by your worker cannot be carried out by any other potential worker who is already in Spain and who is unemployed. In fact, the foreign company, which has hired the teleworker, does so in accordance with the employment laws of the country where it is located, so the fact that its worker performs your work from his home in London, NY or Madrid is irrelevant.
The rumor has spread online that to be able to telework in Spain it is necessary to register as a self-employed and have a commercial contract with the company located abroad that hires you, but this solution is obviously a sham and in breach of the law, as if does not fit the criteria of a self-employed worker according to Spanish law. It can be a
temporary solution, as long as both parties (company and worker) agree, but from the point of view of Spanish legislation, it has no legal basis. In addition, it is necessary to take into account the implications regarding the employment rights of two jurisdictions in conflict, that of the company in its country of origin and that of the worker teleworking in Spain.
A different scenario will apply when the foreign company has a branch in Spain, since in this case, the visa to apply is residence and work, although the work is carried out remotely, and this employment relationship will be subject to Spanish employment laws.
There is currently a bill that includes a new visa to be able to telework in Spain but it has not yet been approved and it will take months until it comes into law here in Spain.
Specifically, what is being done is to introduce a new visa and residence and work authorisation in Spain through which you can live in Spain and work for companies that are outside of our country.
In addition, it allows the possibility of developing said teleworking for companies located in Spain, fulfilling a series of requirements.
This new law will judge tax reductions for teleworkers who are not tax residents, that is, those who spend less than 183 days a year in Spain and who comply with other requirements than those provided for in the bill.
This type of visa can be accessed by those people who carry out work or professional activity remotely for companies that are located outside of Spain, through the exclusive use of computer, telematic, and telecommunication means and systems, and for those self-employed teleworkers, they will be able to also work for a company located in Spain as long as the percentage of said work does not exceed 20% of the total of their professional activity.
As we have said so far, it is only a preliminary draft of the law and is in an initial phase, so the text may undergo many modifications.